State v. Harden , 2022 Ohio 1436 ( 2022 )

[Cite as State v. Harden, 2022-Ohio-1436.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 21CA2
v. :
JEREMY HARDEN, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Abigail Christopher, Assistant State Public Defender, Columbus,
Ohio, for appellant. 1
Judy C. Wolford, Pickaway County Prosecuting Attorney, and
Justin B. Benedict, Pickaway County Assistant Prosecuting
Attorney, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-27-22
ABELE, J.
{¶1} This is an appeal from a Pickaway County Common Pleas
Court judgment of conviction and sentence imposed upon Jeremy
Harden, defendant below and appellant herein, after the Pickaway
County Common Pleas Court, Juvenile Division, determined that
appellant is not amenable to treatment within the juvenile
1
Different counsel represented appellant during the
trial court proceedings.
PICKAWAY, 21CA2
system.
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE JUVENILE COURT COMMITTED PLAIN ERROR
WHEN IT IMPROPERLY DECIDED THAT JEREMY WAS
NOT AMENABLE TO TREATMENT IN THE JUVENILE
SYSTEM BASED ON FACTORS OUTSIDE OF JEREMY’S
CONTROL.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN
IT FOUND THAT JEREMY WAS NOT AMENABLE TO
TREATMENT WHEN THE GOVERNMENT DID NOT
PRESENT CLEAR AND CONVINCING EVIDENCE TO
SUPPORT THIS CLAIM.”
THIRD ASSIGNMENT OF ERROR:
“THE JUVENILE COURT COMMITTED PLAIN ERROR
WHEN IT FAILED TO WEIGH ALL DISPOSITIONAL
OPTIONS PROVIDED BY STATUTE, INCLUDING A
SERIOUS YOUTHFUL OFFENDER DISPOSITION.”
FOURTH ASSIGNMENT OF ERROR:
“JEREMY WAS DEPRIVED OF HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
TRIAL COUNSEL. [SIC]”
{¶3} In 2019, the Pickaway County Prosecutor’s Office filed
a complaint in juvenile court that alleged appellant, nearly 18
years of age at the time, to be delinquent for having committed
the offense of attempted aggravated murder in violation of R.C.
2923.02(A)/2903.01(A). The complaint also contained a firearm
specification.
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{¶4} The juvenile court later found probable cause to
believe that appellant, age 17 years old at the time, did commit
the offense. Because the court also found that R.C. 2152.12
mandated a transfer of the case to the general division of the
common pleas court, the juvenile court transferred the case to
the court’s general division. Subsequently, a Pickaway County
Jury returned an indictment that charged appellant with one
count of attempted aggravated murder, in violation of R.C.
2923.02(A)/2903.01(A), with a firearm specification.
{¶5} The state eventually filed a bill of information that
charged appellant with felonious assault, in violation of R.C.
2903.11(A)(1), along with a firearm specification. In exchange
for appellant’s agreement to plead guilty to the bill of
information, the state dismissed the attempted aggravated murder
charge along with the specification. The trial court found
appellant guilty of felonious assault and sentenced him (1) to
serve six to nine years in prison for the felonious assault
charge, and (2) to serve three years in prison for the firearm
specification. The court also ordered the prison terms to be
served consecutively to one another.
{¶6} Pursuant to R.C. 2152.121(B)(1), the common pleas
court also found that the offense involved, felonious assault,
would have subjected appellant to a discretionary transfer,
4
PICKAWAY, 21CA2
rather than a mandatory transfer, if the state initially had
alleged appellant delinquent for committing the offense of
felonious assault rather than the offense of attempted
aggravated murder. Consequently, the court stayed the sentence
and remanded the matter to the juvenile court.
{¶7} On remand, the state (1) filed a R.C. 152.121(B)(3)(b)
motion to object to the imposition of an R.C. 2152.13(D)(1)
serious youthful offender (SYO) dispositional sentence, and (2)
asked the court to hold a hearing to determine whether appellant
is amenable to treatment within the juvenile system.
{¶8} On November 25, 2020, the juvenile court held a
hearing to consider whether appellant is amenable to treatment
in the juvenile system, or whether the juvenile court should
return the case to the common pleas court. At the hearing the
state indicated that it intended to rely upon the evidence the
parties presented during the September 2019 probable cause
hearing and it did not intend to call additional witnesses. The
court asked appellant whether he had any objection to the court
taking judicial notice of the evidence presented at the probable
cause hearing, and he stated he did not.
{¶9} The state also asked the trial court to admit into
evidence a 13-minute phone call between appellant and another
individual. The state suggested that, during the conversation,
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appellant “makes several statements” that “have value in this
matter,” including (1) threats against “his co-conspirators” and
the prosecutor, and (2) “some statements” about failing to abide
by the court’s no-contact order. The prosecutor asserted that
appellant’s statements would be relevant to determine “whether
he’s willing to actually participate in any counseling or
treatment that would be available in the Juvenile system,” and
would help the court to determine whether appellant poses a risk
to “the public safety at large.”
{¶10} Appellant, however, asserted that the statements he
made during the call depict one particularly frustrating moment
in time and, if the court admits the recording into evidence,
the court should also consider the circumstances under which
appellant made those statements.
{¶11} The trial court stated that it would listen to the
recording and decide whether to admit the recording into
evidence. The state repeated that it did not have any testimony
to present and informed the court that it did not object to the
court considering two reports: one from the probation
department, and one from Clinical Psychologist Dr. James Hagen.2
2
The amenability hearing transcript indicates that Dr.
Hagen’s first name is “Michael.” Dr. Hagen signed his report
with the first name “James.” This opinion uses the name that
appears in Dr. Hagen’s report.
6
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Appellant stipulated that the court may consider the two
reports.
{¶12} At the hearing, Dr. Hagen described appellant’s
forensic psychological evaluation. Part of the evaluation
involved administering an adverse childhood experiences (ACE)
questionnaire. Hagen explained that the ACE questionnaire lists
ten factors that evaluate whether an individual experienced any
(1) physical, sexual, or emotional abuse, (2) neglect, (3)
violence in the home, (4) mental illness in the home, and (5)
substance abuse in the home. Hagen testified that the more
adverse experiences a child has endured, the more likely the
child develops “psychiatric problems or substance use disorders
in their adult years.” Hagen testified that appellant
“experienced seven of the ten” events listed in the ACE
questionnaire.
{¶13} Dr. Hagen further opined that appellant is amenable to
treatment within the juvenile system and sufficient time remains
to treat appellant within the juvenile system. Hagen indicated
that appellant has “intellectual capabilities to benefit from
intensive treatment” and that he believes appellant “has a
motivation to change.” Hagen related that he based his position
that adequate time remained to treat appellant within the
juvenile systems on the understanding that appellant would have
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three years available for rehabilitation within the juvenile
system and, if appellant receives trauma informed therapy, he
could be rehabilitated.
{¶14} On cross-examination, the prosecutor asked Dr. Hagen
whether he holds the same opinion that sufficient time remains
to rehabilitate appellant within the juvenile system with
appellant over age 19, and with one year and nine months within
the juvenile system. Hagen stated that he believes appellant
has adequate time to be rehabilitated within the juvenile
system. The prosecutor also asked Hagen about the success-
failure rate of trauma informed therapy for individuals with
appellant’s background, and Hagen stated he “would just pick a
number arbitrarily” and “would say three out of four * * *
individuals who have available the appropriate therapy would
benefit from it.” He believes that “the probability is very
high that [appellant] would indeed benefit from that form of
treatment.”
{¶15} After Dr. Hagen’s testimony, the trial court allowed
each party to present a closing argument. The prosecutor argued
that insufficient time remained to rehabilitate appellant within
the juvenile system (one year and nine months). The prosecutor
further argued that the R.C. 2152.12(D) factors favor a transfer
to the common pleas court’s general division. The prosecutor
8
PICKAWAY, 21CA2
did, however, recognize Hagen’s opinion that appellant is
amenable to treatment in the juvenile system, but also asked the
court to listen to the recording of appellant’s phone call. The
prosecutor suggested that the recording would help to refute
Hagen’s opinion that appellant is willing and able to
participate in rehabilitative treatment. During this call,
appellant admitted that he violated the court’s no-contact
orders and also threatened the prosecutor’s and appellant’s co-
conspirators’ lives. The prosecutor thus argued that
appellant’s statements indicate that he is unwilling or unable
to change.
{¶16} Appellant, however, asserted that adequate time
remained for his rehabilitation within the juvenile system and
that he is indeed willing and able to change his behavior.
{¶17} On December 8, 2020, the trial court determined that
appellant is not amenable to treatment within the juvenile
system. In explaining its rationale, the court summarized the
evidence offered at the probable cause hearing:
[Appellant] joined some of his friends to confront
another young adult about selling bogus drugs to the
other friend. [Appellant] took a firearm with him. At
the confrontation, [appellant] pointed the gun at the
forehead of the victim, who then engaged in a struggle
with [appellant]. Upon swiping the gun away from his
forehead, the weapon discharged and the victim suffered
a laceration on his forehead. [Appellant] and his
9
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friends fled from the scene. The victim did not suffer
permanent injuries.
{¶18} The trial court indicated that it also considered
appellant’s phone call, the amenability report, and Dr. Hagen’s
report. The court noted that the amenability report states that
appellant (1) “does not appear to have any mental illness,” and
(2) previously received sex offender counseling, as well as
“counseling involving frustration tolerance, substance use and
anger management,” (3) received “some post release counseling
through Scioto Paint Valley Mental Health,” (4) “is a frequent
marijuana user and has progressed to other illicit substances.”
The court rejected Hagen’s opinion that sufficient time remained
to rehabilitate appellant within juvenile court. In so doing,
the court pointed out that case law provides that a trial court
need not always accept an expert witness’s opinion.
Furthermore, court observed that, at the time of the offense,
appellant “was just three months shy of turning eighteen” and
nineteen years and three months of age at the time of the
court’s amenability decision. The court also quoted language
from a Third District case:
the premeditation by the child, the callousness
displayed by the child in the commission of this offense,
and the severity of the crime charged provides the Court
with NO reasonable assurance of public safety for the
community if this child were to remain in the juvenile
system.
10
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State v. Everhardt, 3rd Dist. Hancock No. 5-17-25, 2018-Ohio-
1252, ¶ 14.
{¶19} After review, the trial court found that several R.C.
2152.12(D) factors weighed in favor of transfer to the common
pleas court, and only one R.C. 2152.12(E) factor weighed against
transfer. Specifically, R.C. 2152.12(D)(1), (3), (5), (8), and
(9) weighed in favor of transfer and only R.C. 2152.12(E)(5)
weighed against transfer. The court thus found “that the State
has proven that the juvenile is not amenable to rehabilitation
and that the jurisdiction of this court should be relinquished
and transferred to the General Division for further
prosecution.” On December 29, 2020, the common pleas court
ordered appellant’s sentence to be executed. This appeal
followed.
I
{¶20} In his first assignment of error, appellant asserts
that the trial court plainly erred by determining that he is not
amenable to treatment within the juvenile system. Appellant
alleges, in essence, that the trial court violated his due
process right to a fundamentally fair amenability hearing by
considering his age at the time of the amenability hearing,
11
PICKAWAY, 21CA2
rather than considering his age at the time of the probable
cause hearing.
{¶21} Appellant also observes that his initial charge
involved the offense of attempted aggravated murder, which
requires a mandatory bindover to the common pleas court’s
general division, and, approximately one year later, he entered
a guilty plea to the offense of felonious assault that does not
require a mandatory bindover. Appellant asserts that, because
the court held an amenability hearing one and one-half years
after his initial charge, the state’s initial decision to charge
him with an offense that requires a mandatory bindover caused
appellant to lose that time within the juvenile system. He thus
claims that because the loss of time “is one of the main
reasons” the trial court concluded that appellant is not
amenable to treatment within the juvenile system, the trial
court should not have considered the time that elapsed between
the date of the initial charge and the date of the amenability
hearing. In other words, this passage of time was due to
factors beyond appellant’s control, i.e., the mandatory bindover
and the subsequent court proceedings. Appellant thus argues
that this passage of time violated his due process right to a
fundamentally fair amenability hearing.
12
PICKAWAY, 21CA2
{¶22} We initially observe that, during the amenability
hearing, appellant did not argue that the trial court should not
consider the amount of time that passed while the case proceeded
through the common pleas court. It is well-settled that a party
may not raise any new issues or legal theories for the first
time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d
41, 43, 322 N.E.2d 629 (1975). In general, a litigant who fails
to raise an argument in a trial court forfeits the right to
raise that issue on appeal. E.g., Independence v. Office of the
Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28
N.E.3d 1182, ¶ 30, (appellant may not raise argument on appeal
not raised in the lower court); State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 21 (defendant
forfeits constitutional challenge by failure to raise it during
trial court proceedings); State ex rel. Jeffers v. Athens Cty.
Commrs., 4th Dist. Athens No. 15CA27, 2016-Ohio-8119, fn.3.
Therefore, in the case sub judice appellant has forfeited the
right to raise this issue on appeal.
{¶23} Appellate courts may, however, consider a forfeited
argument using a plain-error analysis. See Risner v. Ohio Dept.
of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278,
2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (reviewing court has
discretion to consider forfeited constitutional challenges); see
13
PICKAWAY, 21CA2
also Hill v. Urbana, 79 Ohio St.3d 130, 133–34, 679 N.E.2d 1109(1997), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286(1988), syllabus (“[e]ven where [forfeiture] is clear,
[appellate] court[s] reserve[] the right to consider
constitutional challenges to the application of statutes in
specific cases of plain error or where the rights and interests
involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning
No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th
Dist. No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (plain error doctrine
“‘is a wholly discretionary doctrine’”); DeVan v. Cuyahoga Cty.
Bd. of Revision, 8th Dist. Cuyahoga, 2015-Ohio-4279, 45 N.E.3d
661, ¶ 9 (appellate court retains discretion to consider
forfeited argument); see Rosales-Mireles v. United States, ___
U.S. ___, 138 S.Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) (court
has discretion whether to recognize plain error).
{¶24} For the plain error doctrine to apply, the party
claiming error must establish (1) that “‘an error, i.e., a
deviation from a legal rule’” occurred, (2) that the error was
“‘an “obvious” defect in the trial proceedings,’” and (3) that
this obvious error affected substantial rights, i.e., the error
“‘must have affected the outcome of the [proceedings].’” State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶
22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
14PICKAWAY, 21CA2
1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207,
209, 436 N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious
and prejudicial although neither objected to nor affirmatively
waived which, if permitted, would have a material adverse affect
on the character and public confidence in judicial
proceedings.”). For an error to be “plain” or “obvious,” the
error must be plain “under current law” “at the time of
appellate consideration.” Johnson v. United States, 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord
Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240; State v. G.C.,
10th Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 14.
{¶25} In the case sub judice, after our review we do not
believe that the trial court committed an obvious error that
affected appellant’s substantial rights. We first point out
that, although appellant couches his argument in terms of “the
passage of time,” the essence of appellant’s argument is that
the trial court should have considered his age at the time of
the probable cause hearing, not his age at the time of the
amenability hearing when the court had to decide whether
sufficient time remained to rehabilitate him within the juvenile
system.
{¶26} To support his argument, appellant asserts that State
v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶
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12, stands for the proposition that a court that conducts an
amenability hearing “must determine what the juvenile court
would have been required to do with the case if the juvenile had
been charged with only those offenses for which convictions were
obtained.” He thus contends that “[f]undamental fairness
requires the juvenile court to make its decision in the same way
it would have had the amenability hearing happened immediately
after the probable cause hearing.”
{¶27} We point out, however, that the portion of the D.B.
opinion appellant quotes did not discuss the provision of the
statute at issue in the case sub judice, R.C. 2151.121(B)(3)(b),
but rather discussed the overall R.C. 2152.121(B) framework. As
the court noted, R.C. 2152.121(B) provides that, if a delinquent
child’s case is mandatorily transferred to the common pleas
court, and if the child later is convicted of or pleads guilty
to an offense in that case, the court shall determine the
sentence to be imposed or the disposition to be made as stated
in the sections that follow. The first section, R.C.
2152.121(B)(1), requires a court to initially determine whether
the offense that the child pleaded guilty to, or was convicted
of, would require mandatory transfer, or would permit a
discretionary transfer. The D.B. court stated that R.C.
2152.121(B)(1):
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PICKAWAY, 21CA2
requires the trial court in which a juvenile has been
convicted to determine whether ‘division (A) of section
2152.12 of the Revised Code would have required
mandatory transfer of the case or division (B) of that
section would have allowed discretionary transfer of the
case’ if only those charges that resulted in convictions
had been presented to the juvenile court in the
delinquency complaint.
D.B. at ¶ 12, quoting R.C. 2152.121(B)(1). The court explained:
“In other words, the trial court must determine what the
juvenile court would have been required to do with the case if
the juvenile had been charged with only those offenses for which
convictions were obtained.” Id. Thus, D.B. stands for the
proposition that a court that is determining, under R.C.
2152.121(B)(1), whether the case would have been subject to
mandatory or discretionary transfer must consider the offenses
that the child ultimately was convicted of, not the offenses
originally charged. The D.B. court did not, however, make the
sweeping statement that appellant claims that, when conducting
an amenability hearing under R.C. 2152.121(B)(3)(b), “the trial
court must determine what the juvenile court would have been
required to do with the case if the juvenile had been charged
with only those offenses for which convictions were obtained.”
Id. Rather, the court stated that when the court initially
determines, under R.C. 2152.121(B)(1), the sentence to be
imposed or the disposition to be made, the court must consider
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PICKAWAY, 21CA2
the “offenses for which convictions were obtained” and ask “what
the juvenile court would have been required to do if the
juvenile had been charged with only those offenses.” Id. We
therefore find appellant’s reliance on D.B. unavailing.
{¶28} Appellant cites no other authority to support the
argument that courts cannot consider an offender’s age at the
time of the amenability hearing, but instead must consider the
offender’s age at the time of the probable cause hearing or that
fundamental fairness requires courts that conduct amenability
hearings after a reverse transfer to consider an offender’s age
at the time of the probable cause hearing, rather than age at
the time of the amenability hearing. We therefore do not agree
with appellant that the trial court obviously erred by
considering appellant’s age at the time of the amenability
hearing, rather than his age at the time of the probable cause
hearing.
{¶29} Furthermore, assuming, arguendo, that the trial court
erred by considering appellant’s age at the time of the
amenability hearing, we do not believe that appellant can
establish that any such error affected his substantial rights.
The amenability hearing procedure requires courts to consider a
host of factors to determine whether an offender is amenable to
treatment within the juvenile system. R.C. 2152.121(B)(3)(b)
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requires courts to consider the factors listed in R.C.
2152.12(D) and (E), and then determine whether the factors in
division (D) “outweigh the applicable factors listed in division
(E).”
{¶30} R.C. 2152.12(D) lists nine factors that weigh in favor
of transfer. One factor is “[t]here is not sufficient time to
rehabilitate the child within the juvenile system.” R.C.
2152.12(D)(9). The remaining factors include:
(1) The victim of the act charged suffered physical
or psychological harm, or serious economic harm, as a
result of the alleged act.
(2) The physical or psychological harm suffered by
the victim due to the alleged act of the child was
exacerbated because of the physical or psychological
vulnerability or the age of the victim.
(3) The child’s relationship with the victim
facilitated the act charged.
(4) The child allegedly committed the act charged
for hire or as a part of a gang or other organized
criminal activity.
(5) The child had a firearm on or about the child’s
person or under the child’s control at the time of the
act charged, the act charged is not a violation of
section 2923.12 of the Revised Code, and the child,
during the commission of the act charged, allegedly used
or displayed the firearm, brandished the firearm, or
indicated that the child possessed a firearm.
(6) At the time of the act charged, the child was
awaiting adjudication or disposition as a delinquent
child, was under a community control sanction, or was on
parole for a prior delinquent child adjudication or
conviction.
(7) The results of any previous juvenile sanctions
and programs indicate that rehabilitation of the child
will not occur in the juvenile system.
(8) The child is emotionally, physically, or
psychologically mature enough for the transfer.
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{¶31} R.C. 2152.12(E) lists eight factors that weigh against
transfer. One factor is “[t]here is sufficient time to
rehabilitate the child within the juvenile system and the level
of security available in the juvenile system provides a
reasonable assurance of public safety.” R.C. 2152.12(E)(8).
The remaining factors include:
(1) The victim induced or facilitated the act
charged.
(2) The child acted under provocation in allegedly
committing the act charged.
(3) The child was not the principal actor in the
act charged, or, at the time of the act charged, the
child was under the negative influence or coercion of
another person.
(4) The child did not cause physical harm to any
person or property, or have reasonable cause to believe
that harm of that nature would occur, in allegedly
committing the act charged.
(5) The child previously has not been adjudicated
a delinquent child.
(6) The child is not emotionally, physically, or
psychologically mature enough for the transfer.
(7) The child has a mental illness or intellectual
disability.
{¶32} In the case before us, our review of the record
reveals that the trial court engaged in the weighing process
that the amenability statute contemplates. The trial court
found that the factors that favor transfer are (1) the victim
suffered physical or psychological harm as a result of the
alleged act; (2) appellant’s relationship with the victim
facilitated the act; (3) appellant used a firearm; (4) appellant
[Cite as State v. Harden, 2022-Ohio-1436.]
is emotionally, physically, or psychologically mature enough for
the transfer; and (5) insufficient time remains to rehabilitate
the child within the juvenile system.
{¶33} Even had the trial court not considered appellant’s
age at the time of the amenability hearing when it evaluated
whether sufficient time remained to rehabilitate appellant
within the juvenile system, but instead considered appellant’s
age at the time of the probable cause hearing, the trial court
nevertheless could have concluded that sufficient time did not
remain to rehabilitate appellant within the juvenile system. At
the time of the probable cause hearing, appellant was 18 years
old. At the amenability hearing, Dr. Hagen testified that three
years would allow sufficient time to rehabilitate appellant
within the juvenile system. The prosecutor asked Hagen whether
sufficient time remained to rehabilitate appellant within the
juvenile system, considering that appellant was 19 years and a
few months of age at the time of the hearing, as Hagen believed
that the time that remained (approximately one year and nine
months) would be “an adequate amount of time.” The trial court,
however, rejected Hagen’s opinion in its entirety. The court’s
decision included language to suggest that it found that, even
if sufficient time remained to rehabilitate appellant within the
juvenile system, the level of security available in the juvenile
[Cite as State v. Harden, 2022-Ohio-1436.]
system does not provide a reasonable assurance of public safety.
R.C. 2152.12(E)(8). The court quoted State v. Everhardt, supra,
and stated that the circumstances of the offense provided the
court with “NO reasonable assurance of public safety for the
community if this child were to remain in the juvenile system.”
Id. at ¶ 14. By including the above quote, the court indicates
that, even if sufficient time remained to arguably rehabilitate
appellant, the circumstances of appellant’s offense and phone
call statements did not provide the court any reasonable
assurance of public safety if appellant were to remain in the
juvenile system. Thus, we do not believe that the court would
have determined that appellant is amenable to treatment within
the juvenile system if the court had considered appellant’s age
at the time of the probable cause hearing, rather than his age
at the time of the amenability hearing. Consequently, we do not
believe that the court’s consideration of appellant’s age at the
time of the amenability hearing constitutes plain error.3
{¶34} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
3
Appellant does not argue in his first assignment of error
that the trial court incorrectly weighed the factors. Thus, we
need not consider the court’s evaluation of the factors.
[Cite as State v. Harden, 2022-Ohio-1436.]
{¶35} In his second assignment of error, appellant asserts
that the trial court plainly erred by not applying the clear and
convincing evidence standard when it determined whether
appellant is amenable to treatment within the juvenile system.
{¶36} Initially, we again note that, because appellant did
not raise this argument during the trial court proceedings, he
forfeited the right to raise the issue on appeal. Moreover,
appellant cannot establish that any error that the court made by
failing to apply the clear and convincing evidence standard is
an obvious error. As appellant points out in his brief, “[t]he
standard of proof on this issue of non-amenability is not
settled.” If the standard is unsettled, then an error in
applying, or failing to apply, a particular standard could not,
by definition, be an obvious error. Johnson v. United States,
supra (that for error to be “plain” or “obvious,” error must be
plain “under current law” at time of appellate consideration).
Additionally, appellant did not cite any mandatory authority to
require the trial court to apply a clear and convincing evidence
standard. Therefore, we cannot conclude that the trial court
plainly erred as appellant suggests.
{¶37} We further observe that this court, along with other
Ohio appellate courts and the Ohio Supreme Court, has reviewed
[Cite as State v. Harden, 2022-Ohio-1436.]
trial court amenability decisions using the abuse of discretion
standard of review. State v. West, 167 Ohio App.3d 598, 2006-
Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.); e.g., In re M.P.,
124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14; State
v. Gregory, 2nd Dist. Montgomery No. 28695, 2020-Ohio-5207, ¶
27. Under the abuse of discretion standard, “the juvenile court
enjoys wide latitude to retain or relinquish jurisdiction, and
the ultimate decision lies within its sound discretion.” State
v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181 (1989).
{¶38} Here, appellant did not argue that the trial court
abused its discretion by determining that he is not amenable to
treatment within the juvenile system, but, instead contends that
the trial court obviously erred by finding appellant is not
amenable to treatment within the juvenile system without
requiring the state to present clear and convincing evidence
that appellant is not amenable to treatment within the juvenile
system.
{¶39} When trial courts apply a clear and convincing
evidence standard, reviewing courts typically apply a manifest
weight of the evidence standard of review. In considering
whether a court’s judgment is against the manifest weight of the
evidence, a reviewing court
[Cite as State v. Harden, 2022-Ohio-1436.]
“‘“weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such
a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.”’”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d
103, 115, 750 N.E.2d 176 (9th Dist. 2001), quoting State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist. 1983).
{¶40} Thus, a clear and convincing evidence standard may
appear to be incompatible with the appellate abuse of discretion
standard of review. As we stated above, it is well-established
that appellate courts review trial court amenability decisions
using the abuse of discretion standard of review. E.g., West at
¶ 10. We recognize, however, that the Ohio Supreme Court has,
at times, applied a puzzling, hybrid manifest weight and abuse
of discretion standard of review. E.g., In re Lu.B., 4th Dist.
Hocking No. 21CA1, 2021-Ohio-4479, ¶ 18. We also note that this
standard of proof issue is currently under review before the
Ohio Supreme Court (the court held oral arguments on December 7,
2021.) See State v. Nicholas, 161 Ohio St.3d 1439, 2021-Ohio-
375, 162 N.E.3d 822. Thus, the Ohio Supreme Court ultimately
[Cite as State v. Harden, 2022-Ohio-1436.]
will decide whether the clear and convincing evidence standard
of proof, or some other standard, applies to amenability
hearings under R.C. Chapter 2152.4
{¶41} Under the current state of the law, trial courts need
not find, by clear and convincing evidence, that a child is not
amenable to treatment within the juvenile system before the
court may transfer the case to the common pleas court general
division. Instead, “the juvenile court enjoys wide latitude to
retain or relinquish jurisdiction, and the ultimate decision
lies within its sound discretion.” Watson, 47 Ohio St.3d at 95.
Once again, because appellant did not raise any argument that
the trial court abused its discretion, we do not address the
issue in any detail, but we simply note that the record reflects
that the trial court appropriately exercised its discretion when
it concluded that appellant is not amenable to treatment within
the juvenile system.
{¶42} We further note that even if we agreed that the clear
and convincing evidence standard applies to R.C.
4
Nicholas involves the initial decision to transfer under
R.C. 2152.12, not a reverse transfer under R.C.
2152.121(B)(3)(b). Nevertheless, both statutes require juvenile
courts to consider the same factors in R.C. 2152.12(D) and (E).
Thus, it makes sense for the same standard to apply under the
initial-transfer statute, R.C. 2152.12, and the reverse-transfer
statute, R.C. 2152.121(B)(3)(b).
[Cite as State v. Harden, 2022-Ohio-1436.]
2152.121(B)(3)(b) amenability hearings, this court should not,
in the first instance, determine whether the record contains
clear and convincing evidence. Instead, the state should have
the opportunity to present evidence to satisfy any newly-
imposed, heightened standard of proof. For this reason, we
decline appellant’s invitation to engage in the fact-based,
clear and convincing evidence analysis that appellant sets forth
in his brief.
{¶43} Within his second assignment of error, appellant
further asserts that the state “must bear the burden of proving
that a child is not amenable to treatment in the juvenile
system.” We again point out, however, that appellant did not
raise this issue during the trial court proceedings. Thus,
absent plain error, appellant has forfeited the issue for
purposes of appeal.
{¶44} Consequently, we do not believe that the trial court
plainly erred by improperly allocating the burden of proof.
Appellant did not cite anything in the record to show that the
trial court required him to prove he is amenable to treatment in
the juvenile system. In fact, at the amenability hearing the
court stated that “the burden rests with the State of Ohio.”
[Cite as State v. Harden, 2022-Ohio-1436.]
{¶45} We recognize, however, as does appellant, that the
reverse-transfer statute is silent as to burden of proof.
Instead, the statute states:
the prosecuting attorney in the case may file a motion
in the juvenile court that objects to the imposition of
a serious youthful offender dispositional sentence upon
the child and requests that the sentence imposed upon
the child by the court in which the child was convicted
of or pleaded guilty to the offense be invoked.
R.C. 2152.121(B)(3)(b).
{¶46} Once a prosecutor files a motion to object to the
imposition of an SYO dispositional sentence, the statute
requires a juvenile court to “hold a hearing to determine
whether the child is not amenable to care or rehabilitation
within the juvenile system and whether the safety of the
community may require that the child be subject solely to adult
sanctions.” Id. The statute continues: “If the juvenile court
at the hearing finds that the child is not amenable to care or
rehabilitation within the juvenile system or that the safety of
the community may require that the child be subject solely to
adult sanctions, the court shall grant the motion.” Id.{¶47} Nothing in the foregoing provisions clearly allocates
a burden of proof. We further observe that one issue the
Nicholas court accepted for review concerns the burden of proof
under the transfer statute, R.C. 2152.12(B). Thus, we are
[Cite as State v. Harden, 2022-Ohio-1436.]
unable to conclude that the trial court plainly erred by
applying an incorrect burden of proof.
{¶48} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶49} In his third assignment of error, appellant asserts
that the trial court erred by failing to consider “all
dispositional options provided by the statute, including a
serious youthful offender disposition.”5
{¶50} The state, however, asserts that appellant’s argument
misconstrues the statute that governs a court’s options in a
reverse-transfer situation under R.C. 2152.121(B)(3). We agree
with the state.
{¶51} R.C. 2152.121(B)(3) applies when the offense for which
a child was convicted did not require mandatory transfer but,
instead, allowed discretionary transfer. In this situation, the
common pleas court “shall determine the sentence it believes
should be imposed upon the child under Chapter 2929. of the
Revised Code, shall impose that sentence upon the child, and
5
Appellant contends that the issue raised in his third
assignment of error also is at issue in Nicholas. We again
note, however, that Nicholas involves juvenile a court’s initial
decision to transfer a case to common pleas court, not the
reverse-transfer procedure at issue in the case sub judice.
[Cite as State v. Harden, 2022-Ohio-1436.]
shall stay that sentence pending completion of the procedures
specified in [R.C. 2152.121(B)(3)].” The statute then requires
the court to “transfer jurisdiction of the case back to the
juvenile court that initially transferred the case and the
juvenile court shall proceed in accordance with this division.”
R.C. 2152.121(B)(3). Once the case returns to the juvenile
court’s jurisdiction, R.C. 2152.121(B)(3)(a) states that “the
juvenile court shall impose a serious youthful offender
dispositional sentence upon the child under [R.C.
2152.13(D)(1)],” unless the prosecuting attorney timely files an
R.C. 2152.121(B)(3)(b) motion that objects to the imposition of
the SYO dispositional sentence.6
6
R.C. 2152.13(D)(1) states:
If a child is adjudicated a delinquent child for
committing an act under circumstances that require the
juvenile court to impose upon the child a serious
youthful offender dispositional sentence under section
2152.11 of the Revised Code, all of the following
apply:
(a) The juvenile court shall impose upon the child
a sentence available for the violation, as if the child
were an adult, under Chapter 2929. of the Revised Code,
except that the juvenile court shall not impose on the
child a sentence of death or life imprisonment without
parole.
(b) The juvenile court also shall impose upon the
child one or more traditional juvenile dispositions
under sections 2152.16, 2152.19, and 2152.20, and, if
applicable, section 2152.17 of the Revised Code.
(c) The juvenile court shall stay the adult portion
of the serious youthful offender dispositional sentence
[Cite as State v. Harden, 2022-Ohio-1436.]
{¶52} If the court grants the prosecutor’s motion, the court
must “transfer jurisdiction of the case back to the court in
which the child was convicted of or pleaded guilty to the
offense, and the sentence imposed by that court shall be
invoked.” 2152.121(B)(3)(b). If, however, the court denies the
prosecutor’s motion, then the court must “impose a [SYO]
dispositional sentence upon the child in accordance with [R.C.
2152.121(B)(3)(a)].”
{¶53} Consequently, contrary to appellant’s argument, R.C.
2152.121 does not give the juvenile court discretion to consider
all dispositional options available in the juvenile system.
Instead, following each step of the statutory analysis that
applies in a reverse-transfer situation indicates that a court
has two options: (1) impose an SYO dispositional sentence; or
(2) transfer jurisdiction to the common pleas court, “and the
sentence imposed by that court shall be invoked.” R.C.
2152.121(B)(3)(b). It appears that nothing in the reverse-
transfer statute that governs the analysis in the case sub
judice gave the juvenile court any other dispositional
alternatives to consider.
pending the successful completion of the traditional
juvenile dispositions imposed.
[Cite as State v. Harden, 2022-Ohio-1436.]
{¶54} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
IV
{¶55} In his fourth assignment of error, appellant asserts
that his trial counsel failed to provide the effective
assistance of counsel as guaranteed under the Ohio and United
States Constitutions. Specifically, appellant contends that
counsel performed ineffectively by failing to (1) advocate for a
clear and convincing standard of proof to determine whether
appellant is amenable to treatment within the juvenile system,
and (2) ask the court to impose an SYO dispositional sentence.
{¶56} The Sixth Amendment to the United States Constitution
and Article I, Section 10 of the Ohio Constitution provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.
263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (Sixth Amendment
right to counsel means “that defendants are entitled to be
[Cite as State v. Harden, 2022-Ohio-1436.]
represented by an attorney who meets at least a minimal standard
of competence”).
{¶57} To establish constitutionally ineffective assistance
of counsel, a defendant must show (1) his counsel’s performance
was deficient and (2) the deficient performance prejudiced the
defense and deprived the defendant of a fair trial. E.g.,
Strickland, 466 U.S. at 687; State v. Myers, 154 Ohio St.3d 405,
2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v. Powell, 132
Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure
to establish either element is fatal to the claim.” State v.
Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
Therefore, if one element is dispositive, a court need not
analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721
N.E.2d 52 (2000) (defendant’s failure to satisfy one of the
ineffective assistance of counsel elements “negates a court’s
need to consider the other”).
{¶58} In the case at bar, we do not believe that appellant
can establish that his trial counsel failed to provide effective
assistance of counsel. Appellant first asserts that trial
counsel failed to ask the trial court to use a clear and
convincing evidence standard when determining appellant’s
amenability to treatment within the juvenile system. However,
as we concluded in appellant’s second assignment of error, the
[Cite as State v. Harden, 2022-Ohio-1436.]
current state of the law does not require juvenile courts to
apply a clear and convincing evidence standard of proof when
considering, under R.C. 2152.121(B)(3)(b), whether an offender
is amenable to treatment within the juvenile system. Thus,
trial counsel did not act deficiently by failing to ask the
court to apply a new standard.
{¶59} We recognize appellant’s argument that counsel could
have advocated for a new standard or a change in the law, but
appellant does not cite any authority to support the position
that counsel performs deficiently if counsel fails to advocate
for a new standard or a change in the law. Appellant’s failure
to establish the deficient performance part of the ineffective-
assistance-of-counsel analysis is dispositive of this claim.
{¶60} Appellant further contends that trial counsel
performed ineffectively by failing to ask the court to impose an
SYO dispositional sentence. We noted in appellant’s third
assignment of error that R.C. 2152.121(B)(3)(b) outlines the
trial court’s options in a reverse-transfer case. If the state
did not object to the imposition of an SYO dispositional
sentence, the trial court would have been required to impose
that sentence. The state, however, objected to the imposition
of an SYO dispositional sentence. In light of the statutory
scheme, we do not believe appellant can establish that trial
[Cite as State v. Harden, 2022-Ohio-1436.]
counsel failed to provide effective assistance of counsel by not
specifically asking the court to impose an SYO dispositional
sentence.
{¶61} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Harden, 2022-Ohio-1436.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee
shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Pickaway County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.